Kresbach v. State, AX-15

• Citation: 10 Fla. L. Weekly 60,462 So.2d 62
• Decision Date: 28 December 1984
• Docket Number: No. AX-15,AX-15
• Parties: 10 Fla. L. Weekly 60 Michael Lawrence KRESBACH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 62

462 So.2d 62

10 Fla. L. Weekly 60

Michael Lawrence KRESBACH, Appellant, v. STATE of Florida, Appellee.

No. AX-15.

District Court of Appeal of Florida,

First District.

Dec. 28, 1984.

Rehearing Denied Jan. 31, 1985.

William L. Camper, Brown & Camper, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Chief Judge.

Kresbach appeals from a conviction and sentence for trafficking in cocaine in excess of 28 grams. He contends that the trial court erred in denying the motion for judgment of acquittal. We reverse.

On December 6, 1982, a Federal Express courier found an envelope that had broken open inside a Federal Express drop-box. The envelope was a Federal Express shipping envelope, with an attached air bill or receipt. While placing the shipping envelope's contents--a manila envelope--into a larger shipping envelope, the courier noticed that the air bill was marked "divorce proceedings", but that the manila envelope felt "mushy" and unlike paperwork. The courier opened the manila envelope and found two clear plastic bags. ¹ One bag contained a white powdery substance, later identified as 81.6 grams of cocaine.

The Leon County Sheriff's Office investigated the return address listed on the Federal Express air bill, but found no business or structure at that address. The manila envelope had a 1982 postmark and a return address of a Tallahassee business. The sheriff's office found only a vacant apartment at that address. The shipping address on the Federal Express envelope's air bill listed Thorne Caldwell of Jackson, Mississippi as the addressee. The sheriff's office made a duplicate Federal Express package, substituted flour for the original powdery substance, and shipped it to Caldwell.

Later, during Kresbach's trial, Caldwell testified that he was not familiar with the other names and addresses listed on the original Federal Express envelope and the manila envelope. He admitted that he had expected delivery of the package, talked by telephone to appellant more than once in late November and December of 1982, and given appellant checks for $700 in September 1982, and for $3,700 in October 1982. Caldwell stated that the two checks were loan repayments to appellant.

Douglas Barrow, a fingerprint identification specialist with the Florida Department of Law Enforcement, examined the Federal Express envelope and its attached bill, the manila envelope and the two clear plastic bags. On the manila envelope, Barrow developed four latent fingerprints, and one other print which could be either that of a finger or palm. Barrow matched one of the fingerprints on the manila envelope with the left thumb print of appellant. The identity of the four other prints on the manila envelope is unknown, except that they were not the prints of the Federal Express courier, any law enforcement personnel, or another Federal Express employee present at the scene of discovery. On the Federal Express envelope, Barrow developed one latent fingerprint, but could not identify it. No prints were found on the Federal Express air bill. Barrow found twelve fingerprints on the two plastic bags and identified three; one each belonging to a police investigator, the Federal Express courier and his fellow Federal Express employee. Barrow testified that he could not tell when any of the developed prints had been placed on any of the items. In his opinion, how long a print remains on an object depends on the amount of moisture or perspiration on the particular finger, whether the finger was oily, the nature of the surface and the atmospheric conditions of the object's location.

The test for reviewing the denial of a motion for judgment of acquittal is "whether the jury, as trier of fact, might reasonably conclude that the evidence excluded every reasonable hypothesis but that of guilt." Lowery v. State, 450 So.2d 587, 588 (Fla. 1st DCA 1984). Appellant argues that the evidence failed to exclude a reasonable hypothesis of innocence; that he touched the manila envelope at a business, friend's house or in a pile of mail, as examples, before it contained cocaine, or at a later time, without knowledge of its illegal contents.

The evidence against appellant consists of the following: Appellant's fingerprint on the manila envelope; Caldwell's testimony that he made two payments totaling $4,400 to appellant within three months of the cocaine's discovery; and Caldwell's testimony that he telephoned appellant at least once within approximately one month of the cocaine's discovery. If appellant's fingerprint on the manila envelope had been the only evidence presented by the state to prove identity, then the state would have been required to prove that appellant's fingerprint could have been made only at the time the crime was committed. Jaramillo v. State, 417 So.2d 257 (Fla.1982); Williams v. State, 308 So.2d 595 (Fla. 1st DCA 1975). The state did not prove when appellant's fingerprint was made, but the other evidence mentioned above eliminated the need for such proof. The crucial question, however, concerns the sufficiency of the state's evidence as to the other elements of the crime charged, trafficking in cocaine. Section...